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February 14, 2013

By Rebecca Glenberg, Legal Director

There can be no doubt that bullying is a serious problem in our schools.  Bullying can have serious effects on the physical and emotional well-being of bullied students.  Schools with high rates of bullying perform worse academically than schools with lower rates of bullying.  And, students who commit acts of school violence frequently have been victims of bullying.
LGBT youth are particularly susceptible to bullying.  These students may already be struggling to come to terms with their sexuality in a hostile cultural environment that may even extend to their own families. For them, bullying exacerbates the trauma and turmoil they may be facing.  LGBT youth suffer higher rates of suicide than the general population, and estimates are that between 30 and 40% of LGBT youth have attempted suicide.  Many LGBT youth who commit suicide have been victims of bullying at school.
For all of these reasons, the ACLU of Virginia supports strong anti-bullying policies that protect students from harassment and intimidation, provide a safe and effective means for students to report bullying, and allow for appropriate investigation of complaints and discipline of bullies.
Because bullying often consists of speech, however, it is essential that anti-bullying policies be written carefully to ensure that they do not infringe on the First Amendment rights of students.   A student’s mere expression of anti-gay, anti-immigrant, or anti-Catholic views, however abhorrent, is constitutionally protected speech.  This kind of political speech must not be swept up into anti-bullying policies.
Finding the correct balance between providing a safe school environment and protecting free speech begins with the definition of “bullying.”  To begin with, the definition should state precisely the kind of conduct that is prohibited.  It must not be so overbroad that teachers and administrators can use it to bar constitutionally-protected speech, nor should it be so vague that students cannot understand when they cross the line from expressing an opinion to bullying.
Second, the definition of bullying should directly target the harms caused by bullying.  The definition should not include speech unless the speech seriously and directly threatens or intimidates one or more students, or is so severe, persistent, or pervasive that it materially limits a student’s ability to participate in or benefit from the educational programs of the school.
Speech that does not have the potential to harm other students directly in this way should not be punished as bullying.  Nonetheless, speech that is inappropriate but does not rise to the level of bullying need not simply be ignored by schools.  Teachers and administrators can use incidents of “hate speech” as “teachable moments” to educate students about values such as empathy and tolerance.
Because bullying is so harmful to students, it can be extremely difficult to find the right balance between the need to protect students from harm and the obligation to protect their civil liberties. This is particularly true in light of the emphasis placed on school safety following the tragic events in Newtown, Connecticut.  We all want to keep our children safe. Nonetheless, we will teach them the wrong lesson if we allow ourselves to believe that the students we desire to protect will be “safer” if we sacrifice the free speech rights of their fellow students to provide that feeling of “safety.”  By all means, let’s teach our students that intimidating and harassing other students is unacceptable. And, let’s teach them the value of allowing all viewpoints to be aired, and create an environment in our schools in which students can learn to have civil discussions about opposing ideas. 

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